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Steve Mutz Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Posted on June 23, 2017

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business. Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant. Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service. The issue of service was of critical importance because the statute of limitations had expired.

With respect to the statute of limitations, plaintiff contended that our client was “united in interest” with other co-defendants and thus the Statute of Limitations did not expire against her. We contended that in order to prove defendants were “united in interest,” plaintiff had to demonstrate reciprocal vicarious liability. We argued that while our client’s medical group was vicariously liable for her, she, as an employee, was not vicariously liable for the torts of her employer and therefore there was no reciprocal vicarious liability.

The judge agreed and denied plaintiff’s request to extend the statute of limitations and granted our motion to dismiss based upon lack of personal jurisdiction. The Court noted that plaintiff made only one attempt to serve our client did not set forth any additional efforts made to obtain the correct address. As such, the judge noted that plaintiff did not demonstrate good cause for additional time under CPLR 306-b. The Statute of Limitations had already expired so this was, in effect, a permanent dismissal of the action.